One of the many prohibitions against discrimination on the basis of disability in employment imposed by the Americans with Disabilities Act ("ADA") is the ADA's strict limits upon an employer's ability to inquire about medical information relating to applicants and employees.[1] In many situations, however, employers need medical information in order to administer human resource policies or to enforce rules, especially rules relating to leaves of absence and absenteeism. Thus, employers have had to learn to identify the circumstances under which the ADA permits them to obtain medical information. For applicants, the qualifying circumstances are relatively straight-forward: an employer may make medical inquiries or require physical or mental examinations only after an offer of employment has been extended, and only if such inquiries or examinations are required of all candidates. In comparison, the ADA permits an employer to conduct medical inquiries or examinations regarding current employees only if a far more nebulous standard is satisfied – the inquiry must be "job-related and consistent with business necessity." A decision by the Second Circuit Court of Appeals, Conroy, et al. v. New York State Department of Correctional Services, et al., 333 F.3d 88 (2d Cir. 2003), breaks new ground in defining the situations in which the latter type of inquiry and examination are permitted, and in so doing, creates new complications for the management of employee absenteeism and leaves of absence.
Inquiries about Individual Employees, Triggered by their Individual Situations
An employer is most likely to request medical information about an employee's situation when the employer believes that such information is required to administer one or more of the employer's policies. Most employers have policies requiring an employee to present a health care provider's written authorization of the employee's return to work after absences of a specified duration, or at the end of a medically-related leave of absence. However, the return-to-work authorization may not be sufficiently specific to allay all of the employer's concerns about the employee's ability to do his or her job, or about the possibility that the employee's condition might create risks or problems for others in the workplace. Under those circumstances, the employer may request more specific information from the health care provider. In requesting such additional information, the employer likely has made the type of inquiry prohibited by the ADA, and may do so only if the facts and circumstances establish that the inquiry is job-related and consistent with business necessity.
There are other situations where an employer may need medical information concerning an employee. For example, employers frequently request that employees provide medical information or submit to a physical or mental examination where their ability to perform their assigned job duties has been called into question by incidents involving their erratic, irrational or unexplained behavior, or where their absenteeism is deemed sufficiently problematic or unpredictable. Additionally, an employer may request medical information or that the employee take a physical or mental examination if such information or examination is necessary for the purpose of determining a reasonable accommodation.
Inquiries Made Pursuant to a Policy Covering a Class or Category of Situations
Rather than relying upon individual assessments, an employer may desire to have a more consistent means of controlling problematic absenteeism and assuring readiness to return to work after leaves of absence. To that end, an employer may establish a policy under which all employees who have had problematic attendance, and all employees returning to work from medical leaves, must provide specific medical information. Does the ADA allow such inquiries, when they are conducted pursuant to an employer's policy, rather than on a case-by-case basis? That is, are such policy-based inquiries about medical information "job-related and consistent with business necessity" even though, by definition, the inquiries are not based upon any individual assessments? The decision by the Second Circuit Court of Appeals (which has federal jurisdiction over the states of New York, Connecticut and Vermont) in Conroy gives employers important guidance in establishing, and applying, such policies.
Second Circuit Decision in Conroy v. New York State Dep't of Correctional Services
Factual Background
In Conroy, two policies of the Department of Correctional Services (the "Department"), which runs the State of New York's prison system, were at issue. One policy required employees to submit a certification including a general diagnosis of their condition after an absence of four or more days. The second policy gave supervisors discretion to request a certification with a general diagnosis with respect to any absence either charged to sick leave or family sick leave or where the employee was suspected of attendance abuse. The Department intended that policy to apply only to situations where the supervisor had first sought to resolve the attendance problem by counseling the employee.
Plaintiff was a corrections officer who suffered from asthma and severe pulmonary obstructive disease. She claimed that the Department's policy requiring a certification containing a general diagnosis violated the ADA's prohibition against an employer making inquiries about an employee's medical condition or disabilities. The district court granted the plaintiff's motion for summary judgment, and denied the Department's summary judgment motion. The Court of Appeals affirmed the denial of the Department's motion. It also affirmed part of the district court's grant of summary judgment to the plaintiff, but reversed on the issue of whether the Department had raised a genuine issue of material fact with respect to the business necessity defense available under the ADA. The Court's analysis of the legal issues, and its description of the facts that would be relevant to the business necessity defense upon remand, contain valuable insights and guidance for employers.
To Whom Do the ADA's Prohibitions Apply?
The Department argued that the ADA's prohibition on disability-related inquiries did not apply to the plaintiff because the Department already was aware of her medical conditions. The Court of Appeals rejected this argument and held that the ADA's prohibitions apply to all applicants and employees, not only to those whose disabilities had not previously been revealed to the employer. At the same time, the Second Circuit stated (as most other courts have also held) that to invoke these prohibitions, it is not necessary for an applicant or employee to establish that she is a "qualified individual with a disability", because it would "make [] little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability." [2]
Generally, a policy requiring a doctor's return-to-work slip after an absence, if it does not require the inclusion of a general diagnosis, is not subject to ADA restrictions. An example of this type of policy is a doctor's note stating that an employee "has been under my care" and is "fit to return to full (or restricted) duty." However, the Court held that a request for a general diagnosis is covered by the ADA because such a request tends to reveal information about actual or perceived disabilities, even if not all general diagnoses actually reveal such information. An example of this type of policy, which would trigger the ADA restrictions, is one requiring a doctor's note to include a general diagnosis, such as that the employee has been "treated for a foot injury."
The Business Necessity Defense as Applied in Conroy
The Court underscored the principle that the business necessity standard is a high one; a showing that a policy of requesting medical information is expedient, or convenient or beneficial to the business, will not suffice. Rather, an employer must show that the asserted business necessity is "vital" to its business.[3] As illustrations, the Second Circuit noted that ensuring that the workplace is safe and secure, and controlling egregious absenteeism, may qualify as business necessities. To establish the defense in this context, the employer also must show that the request for medical information genuinely serves the asserted business necessity, and that the request is narrowly tailored, i.e., no broader or more intrusive than necessary. It is not necessary to show that the request is the only way of achieving the employer's goal, but the request must be a reasonably effective means of achieving such goal.
The Court's guidance for the application of the business necessity defense to medical inquiries made pursuant to policies is consistent with prior decisions concerning individualized medical inquiries. As the Court noted, prior decisions held that business necessity could be established with respect to an "individual employee who had particularly severe attendance problems or had previously demonstrated an inability to perform required job functions." That is, an employer can show that a medical examination or inquiry meets the business necessity test where such inquiry is necessary to determine "1) whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee's capacity to perform his duties (such as frequent absences or a known disability that had previously affected the employee's work), or 2) whether an employee's absence or request for an absence is due to legitimate medical reasons, when the employer has reason to suspect abuse of an attendance policy."[4] In this context, a recent decision by the U.S. District Court for the Northern District of Illinois is instructive. In Jackson v. Lake County, 2003 WL 22127743, No. 01 C 6528 (N.D. Ill. 2003), the court held that an employer must have an objectively reasonable basis for requesting medical information or requiring an employee to submit to a physical or mental examination. It is not sufficient for an employer to hold an "honest belief" that a medical inquiry is consistent with business necessity, absent such an objectively reasonable basis.
In the Conroy case, the evidentiary record was not sufficiently developed to allow the Court to rule on the legal validity of the Department's asserted business necessities (specifically, determining whether an employee can safely and securely perform her job functions after an absence for medical reasons, and whether an absence is due to legitimate medical reasons). The Court ordered further proceedings in the district court on several issues such as the nature of the essential job functions of a corrections officer, whether physicians can understand those functions and assess whether the officer may safely return to work, and whether general diagnosis information is effective in serving the asserted business necessities. The Court noted that the Department's policy applicable to attendance abusers was broadly drawn and gave supervisors substantial discretion as to when to apply it. Although the Court recognized that "weeding out that small group of employees who consistently maintain attendance records far below [the Department's] standards"[5] probably was consistent with business necessity, this particular policy had a much wider scope.
Parameters of the Defense Under Conroy
The Court set forth guidelines for establishing the business necessity of a general policy of making medical inquiries of all employees to determine their fitness for duty, as opposed to inquiries made on the basis of individual employees' situations. Such a general policy applies to any employee who falls within its terms (such as specified absenteeism problems or returning from designated types of leaves of absence), even though the employer conducts no analysis of any employee's individual situation. The Court emphasized that to establish the business necessity of such a policy, an employer may not merely rely upon reasons that a court had found valid in another case; rather, the question of business necessity depends on the facts in the particular workplace.
In addition, the employer must establish the business necessity of the scope and coverage of its policy. As the Court explained, "in defining a class subject to a general policy, the employer must show that it has reasons consistent with business necessity for defining the class the way that it has." However, a policy will not necessarily be invalid if it happens to apply to some employees who do not pose a risk of the type sought to be controlled by the policy. According to the Court, some deference will be afforded to the employer's knowledge of its workplace and employees.
Recommendations for Employers
To improve their chances of withstanding a challenge under the ADA, employers who request employees to provide medical information or to take mental or physical examinations should consider the following actions.
With respect to general policies of the type at issue in the Conroy case: Examine all attendance control policies to determine whether they require, or allow, supervisors to request that employees provide medical documentation or submit to a physical or mental examination in any particular circumstances. If they do, the policy should be analyzed in light of the business necessity standard. What purpose is the policy intended to serve? Is it narrowly tailored and minimally intrusive? What evidence can be provided that the policy actually helps accomplish the purpose for which it was designed, and that the purpose of the policy is one that actually is vital to the employer's business?
With respect to medical inquiries in individual situations: Examine all procedures and policies under which a supervisor may request that an employee provide medical information or submit to a physical or mental examination, based on that employee's particular situation. If such procedures and policies exist, analyze them to determine whether there are appropriate safeguards to assure that medical inquiries are made only when consistent with business necessity. Are medical inquiries limited to situations where they will serve specific, articulated purposes? Does the procedure or policy require that the supervisor have an objectively reasonable basis for requesting medical information? Does the procedure or policy require that the request be narrowly tailored and minimally intrusive? What evidence can be provided that the requests will help accomplish the purpose for which they were made, and that the purpose is one that is vital to the employer's business?
In all situations: Adhere to all applicable ADA confidentiality requirements pertaining to medical information, including requirements that such information is maintained in separate, confidential files, and is not utilized in any manner that discriminates against any individuals with disabilities.
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FOOTNOTES
[1] The ADA provides that a covered employer "shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity." 42 U.S.C. § 12112(d)(4)(A).
[2] 333 F.3d at 95 [quoting Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1229 (10th Cir. 1997)].
[3] 333 F.3d at 97. In its most familiar application, the business necessity defense must be asserted against claims of disparate impact discrimination, i.e., to justify a neutral employment practice (such as a height or weight limit) that allegedly has a disproportionate impact on members of a legally-protected minority group.
[4] 333 F.3d at 98.
[5] Id. at 101.